5A Flashcards
When does the 5A privilege apply? 3 conditions must be met…
All 3 conditions must be met
1. Compulsion - State must compel someone
2. Testimony - State compel witness to be a witness against herself
3. Incrimination - Statement must be incriminating
When can you invoke 5A?
when an answer can get you in trouble in a criminal case
What is compulsion
Ex. Govt saying “if you don’t give us your statement, you will go to jail”
Does 5A apply during civil proceedings?
No
What is the benefit/penalty Distinction
NO LONGER USED— but mention
1. If the govt is giving you a benefit in exchange for testimony = NO compulsion
2. If govt is placing a burden on you in exchange for testimony = Complusion
Who can asset the 5A privilege
only a person who will incriminate themselves
Is compelling an individuals attorney to produce document violate 5A
No - 5A is a personal privilege (Fischer v US)
T or F: The more closely an organization resembles a person the more likely it can claim 5A protection
True
Do partnerships or sole proprietorships have protection under 5A
NO
What is the cruel trilemma
If someone faces 3 choices: perjury, contempt, self-accusation
T or F: Testimonial evidence or communicative evidence is protected by 5A
True
T or F: Physical evidence like blood samples and showing up to a lineup is protected by 5A
False
T or F: 5A must be expressly invoked
True; if you answer a question without invoking right then 5a is WAIVED
What is the Griffin Rule for 5A
invoking 5A CANNOT be treated as evidence of guilt
T or F: When someone faces a cruel trilemma issue that evidence can be seen as incrimination
True
What is testimonial evidence
evidence that a person is forced to give which would be information that a witness would not provide
T or F: a person may refuse to produce documents they believe is communicative (testimonial) evidence
True; because individual admits that the document exists; that he has custody of the docs
T or F: Contents of voluntarily prepared documents are NOT protected by 5A
True
What is the required records exception for the 5A
if the govt requires you to keep records, then 5A doesn’t apply
T or F: if you have immunity you have to TALK and the govt can COMPEL you to talk
True
What are the two type of immunity
- Transactional
- Use/Derivative
What is transactional immunity
The immunity you want
If you testify about a crime, you cannot be prosecuted for that crime (no prosecution for ANY crime you admit to)
What is use/derivative immunity?
If i testify about a crime, I can still be prosecuted for that crime, but the govt has to show that they didn’t use the evidence I provided against me or to generate leads
Ex. Trump said he gets his drugs from Hillary Clinton, and govt didn’t suspect Clinton beforehand, they cannot get her to testify against Trump
What is Wall of Silence in relation to use/derivative immunity?
One way for the government to satisfy its burden of showing that its evidence is not the fruit of immunized testimony is to establish a “Wall of Silence” between the prosecutors exposed to the testimony and the prosecutors who bring the case against the witness.
How do you invoke your right so silence
Speak UPPPP and invoke right
Confessions are only admissible if they are ___________?
voluntary (Brown v Mississippi - black man beat up case)
What are the 3 factors to consider to determine if a statement was voluntary?
- Personal characteristics of the accused
- Actions of the police
- Circumstances surrounding the encounter
T or F: Police can use deceptive practices and false promises to induce a confession
True
When are your Miranda Rights attached?
When you are in police custody; at the station house
What are the Miranda Rights about
putting rules on police men when they want to interrogate someone when they are in custody - its the courts way of trusting the confession
What are the 4 Miranda Warnings
- You have the right to remain silence
- Anything you say can be used against you in the court of law
- You have a right to an attorney
- If you cannot afford an attorney, one will be appointed to you
T or F: Compulsion is inherent in custodial arrest
True; if you are in police custody and they want to ask you questions = compulsion
Statements made, without the Miranda warnings are_______ and ______ be used
involuntary; cannot
Miranda creates an ____________ rule for inculpatory statements (statements where someone admits guilt)
exclusionary
T or F: If a suspect is being questioned by police in custody, and requests a lawyer, the police have to CEASE interrogation, but they don’t have to get you an attorney
True, (because police don’t know how to do that)
T or F: - If police can prove without reasonable doubt, that a person who has been arrested 10 times and can recite the warnings, the police STILL have to give them
True
T or F: If police read suspect their MW and D waives her rights because the police trick her, THAT IS NOT a VALID WAIVER
True
Do police have to give all 4 warnings?
No; if they know the person is rich, they don’t have to advise them that “if you can’t afford a lawyer, one will be appointed”
Can a MW defective statement be used for impeachment purposes? (Ex. If i say in interrogation, that was MW defective, that i was at home at time of killing and on the stand prosecution asks Nicki when the police asked you where you were when Cardi was killed, didn’t you say you were at T-Swift’s house”?
Yes
Do MW have to be read during Terry stops?
No
What is considered interrogation under Miranda?
when officers do express questioning
or
When officers say things they know will elicit a response
What is consider under custody for MW
whether a reasonable person would think they are in custody or not free to leave or arrest
In order of MW to be triggered you have to be both in __________ and in official ______________?
Custody; interrogation
Is consideration of public safety a justification for failure of police to provide MW? Emergency Circumstancde
Yes
Can FBI agents interrogate terrorists with MW
Yes
Are fruits of a MW defective statement, inadmissible? I.e. physical evidence or finding witness to use against them
No
What is the Missouri 2-step? And is it admissible?
- When the police question an individual with MW and get a confession
- Then read them their MW and have them re-confess
NOT ADMISSIBLE
Are 2nd confessions (subsequent confessions) admissible if officers where acting in good faith?
Yes
Under Elstad, if the first confession is involuntary, the 2nd confession would have to be __________
excluded
Waiver of Miranda rights must be______,__________, and ___________
voluntary, knowingly and intelligently made
Dickerson v US
Congress cannot overrule Miranda, because Miranda is a constitutional rule
Edwards v Arizona: If you invoke your right to counsel, the cops cannot come back and they have to leave you alone
Facts: D was given MW and answered some Qs but said wants to talk to a lawyer, next day read rights again by different officer and confessed —> INADMISSIBLE
If you invoke your right to silence, police are allowed to go back if:
- as soon as you invoke your Miranda rights the 1st time, they cease the questioning
- There is a long period of time that passes
- And they give you the MW again but this time it’s a different officer & it’s about another crime
Police add “Do you understand” after saying every Miranda right to _________
show that when you waive your right it will satisfy the knowingly and intelligently made prong
What happens when a suspect invokes his Miranda rights? What must cops do?
The police questioning must CEASE
If you are going to invoke your right to silence under Miranda, you must
SPEAKK UP HOE or else it is implied from answers that you are waiving your miranda rights
Lefkowtiz v Turley
Facts: The state tried to compel employees to answer the questions and if they didn’t they would lose their jobs
Holding: Cannot do, this was compulsion
